IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 768 of 2007()
1. MANOHARAN, S/O. VELUKUTTY, AGED 43,
... Petitioner
2. SREEJA, D/O. NAGAMMA, AGED 34,
Vs
1. G. DASAMMA, D/O. GRACY, AGED 72 YEARS,
... Respondent
2. NIRMALA,D/O. GRACY, AGED 70
3. BABU,S/O. KOCHAPPI, AGED 58
4. G. KAMALAM DO/. GRACY, AGED 56
5. G. RAJAMMA, D/O. GRACY, AGED 54,
6. VASANTHA, AGED 32, VIJI NIVAS,
7. NADESAN,S/O. VELUKUTTY, AGED 47 YEARS,
8. SABU, S/O. VELUKUTTY,AGED 40
For Petitioner :SRI.R.GOPAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/09/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO.768 OF 2007
===========================
Dated this the 6th day of September, 2007
JUDGMENT
Defendants 2 and 4 in O.S.185/2004 on the file
of Munsiff Court, Neyyattinkara are
appellants.Respondents 1 to 6 are plaintiffs and
other respondents are other defendants.
Respondents instituted the suit seeking a decree
for partition contending that plaint schedule
property originally belonged to father ofplaintiffs
Daveed Kochappi father of respondents/plaintiffs
and he filed a petition for purchase of kudikidappu
before the Land Tribunal, Vellarada and during the
pendency of proceedings, Daveed Kochappi died and
thereafter Gracy mother of plaintiffs got herself
impleaded and later the case was compromised and a
purchase certificate was obtained in the name of
Gracy and appellants and respondents 7 and 8 who
are defendants 1 to 4 are the legal heirs of
deceased Ponnamma, sister of respondents 1 to 5
R.S.A.768/2007 2
and deceased third plaintiff and Gracy died in
1991 and respondents 1 to 7 are entitled to 6 out
of 8 shares in the plaint schedule property and
plaintiffs and defendants are in joint possession
of the property and therefore they are entitled to
get their shares separated. Appellants in their
written statement contended that Daveed Kochappi
had no right in the plaint schedule property and
only after marrying Gracy, Kochappi started living
in the property and he had no kudikidappu right
over the property and Gracy alone had kudikidappu
right and in O.A.552/1970 purchase certificate was
issued in the name of Gracy and on the strength of
the purchase certificate Gracy is the absolute
owner of the property and she transferred the
property in favour of first appellant who is the
second defendant, as per sale deed No.258/92 for
valuable consideration and he is a bona fide
purchaser and has effected mutation and has been
paying tax and therefore respondents 1 to 6 are not
entitled to claim any share in the plaint schedule
R.S.A.768/2007 3
property and suit is only to be dismissed. It was
also contended that 3rd respondent/4th plaintiff had
filed an application for kudikidappu right as
O.A.15/2004 and that application was dismissed and
as Gracy sold her right during her life time she
had no right over the property which would
devolve after her death and therefore the suit is
only to be dismissed.
2. Learned Munsiff on evidence of PW1, DW1 and
DW2, Exts. A1 to A3, B1 to B9 granted a preliminary
decree holding that Kochappi was the original
kudikidappukaran and he filed O.A.552/1970 for
purchase of kudikidappu right and Gracygot herself
impleaded as legal heir of Kochappi and obtained
purchase certificate in that capacity and it shall
enure to the benefit of all the legal heirs of
Kochappi. Relying on the decision of this court in
Moothorakutty v. Chiruthakutty(1995 (1) KLT 251) it
was held that Ext.B1 purchase certificate shall
enure to the benefit of Gracy as well as plaintiffs
and legal heirs of deceased Ponnamma the sister of
R.S.A.768/2007 4
plaintiffs. Learned Munsiff also found that as per
Ext.B2 sale deed executed Gracy, her 1/8 share in
the property was transferred and therefore apart
from the share of Ponnamma, appellants are entitled
to the share of Gracy also and plaintiffs are
entitled to get remaining 6/8 shares. Preliminary
decree was passed. Appellants challenged the
decree and judgment before Sub Court, Neyyattinkara
in A.S.74/2006. Learned Sub Judge on
reappreciation of evidence confirmed the findings
of learned Munsiff and dismissed the appeal. It is
challenged in the second appeal.
3. Learned counsel appearing for appellants
was heard.
4. The argument of learned counsel was that
Kochappi was not a kudikidappukaran and it was
specifically pleaded by appellants that the hut
was constructed by father of Gracy and Land
Tribunal granted Ext.B1 purchase certificate to
Gracy alone and not to the legal heirs of Kochappi
and therefore Gracy was the absolute owner of the
R.S.A.768/2007 5
property by virtue of Ext.B1 and under Ext.B2 sale
deed, that right was purchased by first appellant
and therefore on the death of Gracy, no right over
the property was devolved on her children and the
preliminary decree granted by courts below is
unsustainable. Learned counsel also argued that
even if properties are available for partition, the
share computed by courts below is incorrect, as on
the death of Kochappi, under Indian Succession
Act, 1/3 share would devolve on the widow and
under Ext.B2 first appellant is entitled to that
share apart from the share, due to deceased
Ponnamma. Learned counsel further argued that
Ext.B2 sale deed is not a void sale deed and
Gracy is entitled to transfer her right in the
property and without getting Ext.B2 sale deed
set aside, plaintiffs are not entitled to the
decree sought for.
5. On hearing the learned counsel, I do not
find any substantial questions of law involved in
the appeal.
R.S.A.768/2007 6
6. It is not disputed that the kudikidappu
application pursuant to which Ext.B1 was granted,
was filed by Kochappi. It is only after the death
of Kochappi, Gracy his wife was impleaded as his
legal heir and continued to prosecute the O.A.
Proceedings. Ext.B1 purchase certificate was
granted in that O.A. Though it was granted in the
name of Gracy, courts below on appreciating the
evidence found that kudikidappu right granted in
favour of Gracy under Ext.B1 shall enure to the
benefit of all the legal heirs. The principle is
correct in view of the decision of this court in
Moothorakutty’s case (supra).
7. Though learned counsel argued that
computation of shares is not correct, I cannot
agree with the said submission also. Though
Kochappi was a kudikidappukaran, on his death
that kudikidappu right devolved on all the legal
heirs including the widow and children. Till the
kudikidappu was purchased it cannot be said that
Kochappi was the owner of the plaint schedule
R.S.A.768/2007 7
property. Till the purchase he has only the status
of kudikidappukaran. He was entitled to purchase
the kudikidappu. As it was not purchased during
his life time it was that status which devolved on
his legal heirs. Therefore widow is not entitled
to claim 1/3rd share. Instead she is only entitled
to get share along with the children who are also
entitled to equal share. As found by courts below,
in view of Ext.B1 purchase certificate issued by
the Land Tribunal and under Ext.B2 sale deed that
right was transferred to first appellant, first
appellant is entitled to the share of Gracy.
Along with that share, children of Ponnamma are
entitled to the share due to Ponnamma. Courts
below on the evidence rightly found that appellants
are entitled to only the 1/8 share of Gracy along
with the 1/8 share of deceased Ponnamma and
plaintiffs are entitled to the remaining 6/8 share.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
R.S.A.768/2007 8
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006
